[Federal Register Volume 72, Number 82 (Monday, April 30, 2007)]
[Notices]
[Pages 21316-21318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8178]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2006-26600]


Qualification of Drivers; Exemption Applications; Diabetes

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition.

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SUMMARY: FMCSA announces its decision to exempt fifty-five individuals 
from its rule prohibiting persons with insulin-treated diabetes 
mellitus (ITDM) from operating commercial motor vehicles (CMVs) in 
interstate commerce. The exemptions will enable these individuals to 
operate CMVs in interstate commerce.

DATES: The exemptions are effective April 30, 2007. The exemptions 
expire on June 1, 2009.

FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Chief, Physical 
Qualifications Division, (202) 366-4001, [email protected], FMCSA, 
Department of Transportation, 400 Seventh Street, SW., Washington, DC 
20590-0001. Office hours are from 8:30

[[Page 21317]]

a.m. to 5 p.m., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access

    You may see all the comments online through the Document Management 
System (DMS) at: http://dmses.dot.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov and/or Room PL-401 on the 
plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Privacy Act: Anyone may search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or of the person signing the comment, if 
submitted on behalf of an association, business, labor union, or other 
entity). You may review DOT's complete Privacy Act Statement in the 
Federal Register (65 FR 19477, Apr. 11, 2000). This statement is also 
available at http://dms.dot.gov.

Background

    On March 1, 2007, FMCSA published a notice of receipt of Federal 
diabetes exemption applications from fifty-five individuals, and 
requested comments from the public (72 FR 9399). The public comment 
period closed on April 2, 2007 and two comments were received.
    FMCSA has evaluated the eligibility of the fifty-five applicants 
and determined that granting the exemptions to these individuals would 
achieve a level of safety equivalent to, or greater than, the level 
that would be achieved by complying with the current regulation 49 CFR 
391.41(b)(3). The Agency would like to publish a correction to Mr. 
Cottongim's profile. Mr. Cottongim was published as having an 
operator's license from the State of Ohio when he actually holds an 
operator's license from the State of Indiana.

Diabetes Mellitus and Driving Experience of the Applicants

    The Agency established the current standard for diabetes in 1970 
because several risk studies indicated that diabetic drivers had a 
higher rate of crash involvement than the general population. The 
diabetes rule provides that ``A person is physically qualified to drive 
a commercial motor vehicle if that person has no established medical 
history or clinical diagnosis of diabetes mellitus currently requiring 
insulin for control'' (49 CFR 391.41(b)(3)).
    FMCSA established its diabetes exemption program, based on the 
Agency's July 2000 study entitled ``A Report to Congress on the 
Feasibility of a Program to Qualify Individuals with Insulin-Treated 
Diabetes Mellitus to Operate in Interstate Commerce as Directed by the 
Transportation Act for the 21st Century.'' The report concluded that a 
safe and practicable protocol to allow some drivers with Insulin-
Treated Diabetes Mellitus (ITDM) to operate CMVs is feasible. The 2003 
notice in conjunction with the November 8, 2005 (70 FR 67777) Federal 
Register Notice provides the current protocol for allowing such drivers 
to operate CMVs in interstate commerce.
    These fifty-five applicants have had ITDM over a range of 1 to 40 
years. These applicants report no hypoglycemic reaction that resulted 
in loss of consciousness or seizure, that required the assistance of 
another person, or resulted in impaired cognitive function without 
warning symptoms in the past 5 years (with one year of stability 
following any such episode). In each case, an endocrinologist has 
verified that the driver has demonstrated willingness to properly 
monitor and manage their diabetes, received education related to 
diabetes management, and is on a stable insulin regimen. These drivers 
report no other disqualifying conditions, including diabetes-related 
complications. Each meets the vision standard at 49 CFR 391.41(b)(10).
    The qualifications and medical condition of each applicant were 
stated and discussed in detail in the March 1, 2007, Federal Register 
Notice (72 FR 9399). Because there were no docket comments on the 
specific merits or qualifications of any applicant, we have not 
repeated the individual profiles here.

Basis for Exemption Determination

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption 
from the diabetes standard in 49 CFR 391.41(b)(3) if the exemption is 
likely to achieve an equivalent or greater level of safety than would 
be achieved without the exemption. The exemption allows the applicants 
to operate CMVs in interstate commerce.
    To evaluate the effect of these exemptions on safety, FMCSA 
considered medical reports about the applicants' ITDM and vision, and 
reviewed the treating endocrinologist's medical opinion related to the 
ability of the driver to safely operate a CMV while using insulin.
    Consequently, FMCSA finds that exempting these applicants from the 
diabetes standard in 49 CFR 391.41(b)(3) is likely to achieve a level 
of safety equal to that existing without the exemption.

Conditions and Requirements

    The terms and conditions of the exemption will be provided to the 
applicants in the exemption document and they include the following: 
(1) That each individual submit a quarterly monitoring checklist 
completed by the treating endocrinologist as well as an annual 
checklist with a comprehensive medical evaluation; (2) that each 
individual reports within 2 business days of occurrence, all episodes 
of severe hypoglycemia, significant complications, or inability to 
manage diabetes; also, any involvement in an accident or any other 
adverse event in a CMV or personal vehicle, whether or not they are 
related to an episode of hypoglycemia; (3) that each individual provide 
a copy of the ophthalmologist's or optometrist's report to the medical 
examiner at the time of the annual medical examination; and (4) that 
each individual provide a copy of the annual medical certification to 
the employer for retention in the driver's qualification file, or keep 
a copy in his/her driver's qualification file if he/she is self-
employed. The driver must also have a copy of the certification when 
driving, for presentation to a duly authorized Federal, State, or local 
enforcement official.

Discussion of Comments

    FMCSA received two comments in this proceeding. The comments are 
considered and discussed below.
    A letter of recommendation was received in favor of granting the 
Federal diabetes exemption to Mr. Jamison P. Noel. It was written by 
Pamela R. Miller who states that Mr. Noel takes exceptional care of his 
health and is very responsible.
    The World Privacy Forum stated its concern that personal medical 
information tied to identifiable individuals is being published in the 
Federal Register. They are of the opinion that the disclosure of the 
medical status of these individuals can have negative consequences for 
them and their family members.
    The Transportation Equity Act (TEA 21), Section 4007 states that 
``upon receipt of an exemption request, the Secretary shall publish in 
the Federal Register a notice explaining the request that has been 
filed and shall give the public an opportunity to inspect the safety 
analysis and any other relevant information known to the Secretary and 
to comment on the request. This

[[Page 21318]]

subparagraph does not require the release of information protected by 
law from public disclosure.''
    The Agency publishes a profile on each individual that submits an 
application in order to provide the public with the information 
required by TEA 21. The Federal diabetes exemption application informs 
the applicant, in detail, of all information that will be published in 
the Federal Register related to their application. Therefore, each 
applicant is fully informed of this requirement prior to submitting 
their application.

Conclusion

    After considering the comments to the docket and based upon its 
evaluation of the fifty-five exemption applications, FMCSA exempts, 
James F. Andrews, Roger D. Balzan, Ronald K. Barker, James A. Bettis, 
Daniel W. Bezdek, James A. Burchette, Andrew J. Causey, Ross E. Cheney, 
Joan L. Chumney, Jerry R. Chandler, Leonard T. Coker, Robert S. 
Conchola, Sr., Robert M. Cottongim, Don C. Doerfler, Frederick J. Fath, 
Jason L. Freeseman, Rusty W. Frost, Marcel C. Gagnier, Steven A. Gibbs, 
Kenneth D. Gregory, Perry S. Green, Paul M. Harris, Andrew J. Hayek, 
Gary L. Koehn, Randall B. Kutzke, Michael J. Marlin, Marc K. Marsing, 
Frank J. Mattos, Winfred A. McMurray, Edward T. Megee, Steven T. Moody, 
Paul E. Mougin, Timothy W. Nelson, Richard W. Newman, Jamison P. Noel, 
Rex S. Norquist, Steven B. Novak, Lawrence E. Olson, Ronnie L. 
Patterson, Benigno A. Piedra, David L. Rice, Emiliano Rios, Russell D. 
Rockefeller, Matthew T. Russell, Larry V. Schwaller, Ellis D. Scott, 
Scott Sheerer, Lowell P. Smith, Richard L. Strange, Samuel G. Thiel, 
Robert J. Varetoni, Michael R. Vaupel, David G. White, and Ray W. 
Wright from the ITDM standard in 49 CFR 391.41(b)(3), subject to the 
conditions listed under ``Conditions and Requirements'' above.
    In accordance with 49 U.S.C. 31136(e) and 31315 each exemption will 
be valid for two years unless revoked earlier by FMCSA. The exemption 
will be revoked if: (1) The person fails to comply with the terms and 
conditions of the exemption; (2) the exemption has resulted in a lower 
level of safety than was maintained before it was granted; or (3) 
continuation of the exemption would not be consistent with the goals 
and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is 
still effective at the end of the 2-year period, the person may apply 
to FMCSA for a renewal under procedures in effect at that time.

    Issued on: April 24, 2007.
Pamela M. Pelcovits,
Acting Associate Administrator, Policy and Program Development.
[FR Doc. E7-8178 Filed 4-27-07; 8:45 am]
BILLING CODE 4910-EX-P